Nuclear Spent Fuel Challenges: Guest post by Martin Cohn

Dry Casks at Vermont Yankee
Photo courtesy of Entergy

Within the next four years, Entergy has announced that it plans to close two more of its nuclear power plants. James A. Fitzpatrick Nuclear Power Plant in Oswego County, New York, and Pilgrim Nuclear Power Generating Station in Plymouth, Massachusetts, will join Vermont Yankee in Vernon, Vermont, in moving towards decommissioning.

Among the challenges Entergy will face is spent fuel storage.

According to the U.S. Government Accountability Office, commercial nuclear power production in the U.S. has generated over 70,000 metric tons of spent nuclear fuel—fuel that has been irradiated and removed from nuclear reactors—and the inventory is increasing by about 2,200 metric tons per year. This high-level waste is extremely radioactive and needs to be isolated and shielded to protect human health and the environment. In 1982, Congress passed the Nuclear Waste Policy Act, assigning the federal government’s long-standing responsibility for disposal of spent nuclear fuel to the U.S. Department of Energy. Although the DOE was to begin accepting spent fuel by January 31, 1998, the nation remains without a repository for disposal after spending decades and billions of dollars to research potential sites for permanent disposal, including Yucca Mountain in Nevada. Instead, it is currently being stored primarily at the sites where it was generated.

In the absence of a national repository and as spent nuclear fuel continues to accumulate at individual reactor sites, Entergy and other power plant owners have been forced to contend with the continued on-site storage of spent nuclear fuel in spent fuel pools and dry cask storage when the pools’ storage capacity is reached. Spent nuclear fuel usually cools for at least several years in a pool before it is transferred into either a vertical or horizontal dry storage system. The cooled fuel is then loaded into canisters, which are then filled with helium, sealed and tested to confirm that the canister is leak tight in accordance with ASME pressure vessel standards. A loaded canister is transferred from the transfer container into a storage overpack or cask (large steel cylindrical structures) that contains high-density concrete for radiation shielding and ventilation openings for cooling of the canister. The casks are placed on a concrete storage pad that is part of an independent spent fuel storage installation, or ISFSI. The casks are monitored to confirm that the vents at the top and bottom of the outer cask are not blocked so that air can circulate and therefore remove the heat generated by the fuel.

At the Vermont Yankee plant, for example, the spent fuel pool began nearing maximum storage capacity in the mid-2000s, and Entergy needed to construct a dry storage facility in order to continue plant operations. Under Vermont state law, the Vermont Public Service Board has the authority to review proposals for the construction of any new spent nuclear fuel storage facilities in the state. This required plant owner Entergy Nuclear Vermont Yankee (ENVY) to apply to the Public Service Board for a Certificate of Public Good (CPG) to construct a dry fuel storage facility at Vermont Yankee.

In 2006, after a litigated administrative proceeding, the Vermont Public Service Board issued an order approving ENVY’s petition to construct a dry fuel storage facility at Vermont Yankee. A concrete pad, 76 feet by 132 feet, was subsequently constructed that could accommodate 36 dry casks supplied by Holtec International. Dry loading campaigns occurred in 2008, 2011 and 2012 in which 13 dry casks were placed on the pad.

On August 27, 2013, Entergy announced that it would permanently cease operations at Vermont Yankee by the end of 2014. The reactor shutdown occurred on December 29, 2014. By mid-January of 2015, all nuclear fuel was removed from the reactor and placed in the spent fuel pool.

In June, 2014, ENVY filed another petition before the Vermont PSB to construct a second ISFSI storage pad to store the spent nuclear fuel that remained in the VY spent fuel pool. The need for the second pad continues due to the absence of Department of Energy performance in transferring the fuel from VY to a federal repository. Entergy expects to complete transferring fuel from the spent fuel pool to the ISFSI in 2020. Once the final loading campaign has been completed, ENVY expects to reduce the protected area to the area surrounding the two ISFSI pads to reduce the security costs that will be funded from the nuclear decommissioning trust. The proposed second ISFSI storage pad would be 76 feet by 93 feet and built 30 feet immediately to the west of the existing ISFSI storage pad and would continue to use the same system that was previously approved by the PSB for dry cask storage of spent fuel on site.

ENVY has asked that the approval of the Certificate of Public Good be granted in May 2016. If this occurs, then construction of the second ISFSI can be completed in 2017 at the same time casks are being loaded on the first ISFSI pad. This will ensure complete transfer of all spent fuel to dry casks by the end of 2020.

ENVY is funding the costs for the construction of the second ISFSI pad, procurement of dry storage systems and transfer of the fuel from the spent fuel pool to the ISFSI through two revolving credit facilities totaling approximately $145 million. ENVY plans to repay borrowings on these credit facilities with funds recovered in litigation from the DOE for breach of its contract to remove spent nuclear fuel from the VY Station.

Franklin Orr, Under Secretary for Science and Energy, recently wrote, "According to consensus in the scientific community, geological repositories--which would store nuclear material deep within the earth’s surface in safe, scientifically proven locations—represent the safest and most cost-effective method for permanently disposing of spent nuclear fuel and high-level radioactive waste. The first step for commercial spent fuel begins with developing a pilot interim storage facility that will mainly accept used nuclear fuel from reactors that have already been shut down. The purpose of a pilot facility is to begin the process of accepting spent fuel from utilities, while also developing and perfecting protocols and procedures for transportation and storage of nuclear waste. It is our goal that throughout the process of developing a pilot interim facility that the Department of Energy builds trust with all of the local communities involved."

Full decommissioning and site restoration of the VY and other shutdown plant sites cannot take place until the used fuel is removed by the DOE. The DOE has collected over $10 billion from nuclear plant owners to construct and operate a spent fuel repository without taking any spent fuel. In 1987, Congress designated Yucca Mountain in Nevada as a national disposal site. Over twenty years later, however, President Obama abandoned the project. It is imperative that Congress acts to find a solution for the used fuel issue because a reactor licensee cannot fully decommission a licensed reactor site until the spent fuel has been removed from the site. In the meantime, Entergy and other plant owners must continue to store the spent fuel on-site in a safe, cost effective manner.

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This guest post is by Martin Cohn, Senior Communications Specialist at Vermont Yankee. This post first appeared as an article in Nuclear Power International Magazine, January-February 2016. It also appears in Power Engineering Magazine, February 16, 2016

SAFSTOR Matters video with Joe Lynch: The Spent Fuel Line of Credit

This is the first video in the SAFSTOR Matters Community TV series.  The monthly series, produced by Entergy as part of its outreach program, recently won the Best Series Award at Brattleboro Community TV.

This video includes Martin Cohn, Senior Communications Specialist at Entergy as the host. He interviews Joe Lynch,  Entergy Government Affairs Manager.  A very important part of this video is the description of Entergy's line-of-credit for spent fuel management.

This  first video was shown on Brattleboro Community TV on April 15, 2015, and includes a general overview of the decommissioning process at Vermont Yankee, including its effects on the community. You can see more videos in the series, and read more information about decommissioning, at Vermont Yankee's decommissioning web page http://vydecommissioning.com

 



A loan for spent fuel

In this video, there's a very important point made about spent fuel financing, which starts at about 19 minutes into the video.

Some background: The money that nuclear plants use in dealing with spent fuel can be recaptured from the federal government. The nuclear plants have paid billions of dollars to the federal government for spent fuel handling and storage.  The federal government has done nothing about spent fuel (except build and abandon Yucca Mountain, an activity that has not helped any nuclear plant). The government is basically in a breach-of-contract situation.

So the plants routinely sue the federal government for breach of contract about spent fuel management, and routinely win the suits, and routinely obtain funds from the federal government after the lawsuit.

Plants who are decommissioning usually obtain a waiver from the NRC, to use decommissioning funds for spent fuel management. The plants replace that money into the decommissioning fund when they have collected from the government after a lawsuit.

But as Dickens and others have pointed out, lawsuits take time. Meanwhile, the spent-fuel-management money withdrawn from the decommissioning fund is not accumulating interest.

The line of credit: At the nineteen minute mark in this video, Joe Lynch explains that Entergy has arranged private lines of credit for spent fuel management-- these lines of credit total $145 million. The lines of credit provide the money that will be used for the initial stages of spent fuel management, and that money will be replaced by the money obtained in successful lawsuits against the government.  Meanwhile, the Vermont Yankee decommissioning fund itself will not be tapped for spent fuel management.  The fund will accumulate interest and grow without suffering spent-fuel-management withdrawals.

As far as I know, Entergy is the only nuclear owner that has arranged a line of credit for spent fuel management.  Entergy should be given credit for their foresight.

Why Entergy Needs To Sue The Federal Government About Spent Fuel Storage: Guest Post by Guy Page

I attended the April 14 Vermont Yankee decommissioning meeting in Greenfield. As a longtime student of New England energy policy in general and Vermont Yankee in particular, perhaps I can add some historical background to your April 15 article, "Entergy: we'll sue the federal government to recoup the costs at Vermont Yankee," April 20, page D3.

Spent fuel from U.S. nuclear reactors must be safely stored until it is reprocessed into more fuel or until its radioactivity decays to acceptable levels (requiring hundreds of years, at the least). In 1977 U.S. President Jimmy Carter banned reprocessing. Five years later, Congress passed the Nuclear Waste Act of 1982, "to provide for the development of repositories for the disposal of high-level radioactive waste and spent nuclear fuel," according to its introduction.

According to the Act, the federal government must provide the repository, and the nuclear power industry must pay for it. Sec. 111 (a) (4): "while the Federal Government has the responsibility to provide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to protect the public health and safety and the environment, the costs of such disposal should be the responsibility of the generators and owners of such waste and spent fuel."

Since 1982, nuclear power plants (including Vermont Yankee) have held up their end of the deal. With principal sourced solely from industry contributions, the U.S. Nuclear Waste Fund had grown to $39.8 billion, according to its September, 2014 report.

In return, the industry - along with regular citizens opposed to onsite storage, many Greenfield meeting attendees among them - has received nothing. There is no repository. True, there is a nearly-finished repository, at Yucca Mountain, Nevada, but the federal government has refused to open it. Sans repository, the federal government has done no more than permit, regulate and oversee the safe storage of spent fuel, in enclosed pools of water and in large concrete shielded, sealed steel casks, at the nation's 104 nuclear power plant sites.

No-one has pressed harder for a central repository than the nuclear power industry. Certainly no-one has more financial "skin in the game" - $40 billion being a lot of money, even in Washington, D.C. More than 30 years after the passage of the Nuclear Waste Act, Washington's promise to the industry and the American public is unfulfilled. Perhaps the possibility of the federal judiciary returning that $40 billion will prompt the executive branch to take effective action. But at the very least the federal government should use the Nuclear Waste Fund to pay the industry for the spent fuel management work it cannot or will not perform - including $150 million at Vermont Yankee alone.

But the federal government won't do that, yet. And that's why Entergy, and other nuclear power plant owners, are successfully suing Uncle Sam. He should either produce a repository, or pay up.

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Guy Page

Guy Page of Vermont Energy Partnership is a frequent guest blogger on this blog.  This op-ed first appeared in MassLive on April 21, 2015  His most recent post described testimony about spent fuel storage.

Used Fuel: Shaffer Statement at the Vermont Legislature

As I noted in my post Cheerful Wednesday, Howard Shaffer was invited to speak to the House Natural Resources and Energy Committee on Thursday, April 25.  Robert Alvarez and Arnie Gundersen also spoke to the same committee.  (My "Cheerful Wednesday" post has many links about the Alvarez talk.) This post mostly consists of Howard's prepared remarks. But I will start with the quote from Vermont Public Radio that ended their description of Gundersen's talk.

Vermont Public Radio

Howard Shaffer

On Friday, John Dillon of Vermont Public Radio  broadcasted a report: Engineer Says State Could Face Expensive Clean-up If Vermont Yankee Closes.  The report quotes both Gundersen and Shaffer. I link to the transcript, above.

From the VPR report:

A pro-Yankee nuclear engineer said lawmakers should not be overly worried that the state will be left footing the bill if Entergy closes the plant.

Howard Shaffer is from Enfield, N.H. and worked for years in the nuclear industry. He said the federal government would not allow Entergy to walk away.

“The issue of will there be enough money is a serious one, but I also think it will be found that the federal government laws override state laws that allow somebody to go bankrupt and run away from their responsibility,” he said. “That’s Congress’ intent. And they’re going to find the original owners and make them pay.”

Shaffer's Statement

VERMONT  LEGISLATURE

House Natural Resources and Energy Committee

Storage of Used (Spent) Reactor Fuel at the 

Vermont Yankee Nuclear Power Station

Howard Shaffer   PE (nuclear)   VT, NH, MA 

Thank you Chairman Klein and Committee Members for allowing me to come before you today.  My purpose is to provide what I can from my experience on this important matter.  My view is positive.

Virtually my entire career has been in nuclear power. My resume is attached.

Background

Missing from the nuclear debate has been clarity about the overall design philosophy of US nuclear generating facilities.  From the beginning, every aspect of the program -- hardware, training, management and regulation-has been designed, not on the belief that accidents MIGHT happen, but on the certainty that accidents WILL happen. Experience with human performance proves that there will be mistakes.  If the benefits were to be enjoyed, then all possible means to first, prevent accidents, and second to deal with the consequences of accidents had to be developed and put in place.

A key part of the design process is asking “What if..?”  scenarios for all imaginable events that could happen.  The design and licensing process continues and asks “How could this happen” and “How long does this take to happen?” and “What are the odds that it will happen?”  Fast-breaking events require controls that respond instantly and automatically, while longer-term events include actions by trained nuclear operators.  For example, the Design Basis pipe break initiates a series of automatic programmed shutdown responses for the first ten minutes.  At that point, the nuclear operations team takes over the process.  The operators are the first responders.  At Fukushima, the operators worked diligently until the accident was under control.  It took more than a day before there was any release, and the order to evacuate residents in the vicinity came hours before that.

Used (spent) fuel storage

One-third of the nuclear fuel in the Vermont Yankee reactor is replaced every 18 months. The fuel that is removed from the reactor and stored on-site continues to be a valuable resource because only about 10% of the energy contained in the fuel has been used and 90% of that energy can be reclaimed through recycling and used to create more electricity.

The solid ceramic fuel pellets in the fuel bundles that have been removed from the reactor as spent fuel

and stored in dry casks, are air cooled by natural circulation through the cask. The pellets have been stored in water for more than five years and are generating very little heat.   With the shielding in the 100-ton storage casks, the used fuel is very secure.  Even if a cask was broken open and the pellets scattered on the ground, they would just lie there, continuing to be air cooled.  Radiation dose to the offsite public would be insignificant.

Used fuel in the pool is also very secure.  The reactor building and radioactive waste storage facilities are designed for the maximum Design Basis earthquake and 360 mph winds from a tornado with 300 mph winds advancing at 60 mph. The fuel pool and the entire cooling system are in those buildings.  The system is powered by two redundant emergency backup diesel generators when normal power is lost.  There also are backup water supplies to the spent fuel storage pool.  Post 9-11 and based on hypothetical spent pool fire studies, the fuel is stored in the pool in a checker-board pattern, with the fuel most recently removed from the reactor, which generates the most heat,  surrounded by older fuel(which has been cooling in the pool for up to 35 years) that will absorb heat.

There was an event this February at Pilgrim plant in Massachusetts, a plant like Vermont Yankee. This event illustrates the design margin.  During storm Nemo all offsite power was lost for two days.  The reactor scrammed and emergency backup diesels started automatically, as designed.  The reactor was brought to cold shutdown by the Pilgrim reactor operations team in 10 hours, and fuel pool cooling, which can be suspended for a long time due to the large volume of water in the pool, was  restored after 21 hours!

Understanding the Nuclear Debate

I’ve struggled to understand how the debate over nuclear power got to be so politically polarized.  Starting with the famous book “Soft Energy Paths”--the author wants to do away with nuclear weapons (don’t we all?) and he concludes we must do away with all nuclear power generation--a source of 20 per cent of the US electricity supply--in order to do this.  This means finding and developing economically-viable technologies to replace the 24/7 base-load power generated by nuclear plants without massive increases in the use of fossil fuels.

Unfortunately, it also has led in some quarters to doing as much as possible to discredit nuclear power.  Some supporters of nuclear power call this spreading FUD – Fear Uncertainty and Doubt.

Using examples that increase fear of radiation is a common tactic.  For example the warning that an element has a “half-life of millions of years” implies that it will be harmful or dangerous that long.  The opposite is true.  The longer the half-life, the more slowly the radiation is given off and the lower the dose each year.

Implying that radiation comes only from the generation of electricity with nuclear power,  and nuclear weapons is also false.  Radiation is natural.  The Uranium in the granite in this statehouse building was radioactive millions of years ago, and will be radioactive in millions more.  This is a natural part of our environment, and we all get low doses of radiation continually.

The sun’s light, heat and other radiation comes from nuclear reactions.  We could even say  “Solar Power is Nuclear Power.”

Here is an example of a peaceful use of radioactive material.  (Hold up EXIT sign)

Thank you.

Tritium-containing Exit Sign

Shaffer to Testify: Cheerful Wednesday

Anti-Nuclear and Nuclear on the Committee Schedule

Last Thursday, anti-nuclear activist Robert Alvarez spoke to the House Natural Resources and Energy Committee at the Vermont State House.  This Thursday (tomorrow), Arnie Gundersen will speak to them.

However, Howard Shaffer will also be speaking to the Committee tomorrow!  That's the cheerful news.

Well, it isn't perfect news, of course.  Alvarez spoke for an hour, and Gundersen is also scheduled for an hour or more. That's two hours.  Shaffer will have slightly more than an hour, according to the schedule. Still, Shaffer will be able to share some facts about spent fuel. His facts will counter the Alvarez scare stories.

Howard Shaffer

As of yesterday, it appeared that only Alvarez and Gundersen would be testifying to the legislative committee.  At that point, I was very annoyed, and I sent a letter to the editors of the local papers.

Today, I am very happy that Howard will testify.  However, everything in my letter remains true.

My Letter to the Editor: Why Alvarez? 


On April 18, Robert Alvarez spoke to the Vermont House Natural Resources and Energy Committee about spent fuel storage at Vermont Yankee.  I attended a large portion of that meeting and I also collected his handout.  The legislature is considering a tax on spent fuel.

Committee with Alvarez testifying

At the meeting, Alvarez spoke at length about the dangers of spent fuel. He advised that, for safety, much of the spent fuel should be taken out of the fuel pool and placed in dry casks.  He also spoke about taxing the fuel, and about decommissioning.

In other words, he gave the standard anti-nuclear talk.  Upon questioning, Alvarez admitted that the organization he works for is opposed to nuclear energy, and further admitted that he has no technical degree, though he has been a politically-appointed “policy advisor” in the Department of Energy.

My first reaction was to wonder why the Vermont legislature had invited Alvarez to testify.  My second reaction was to try to figure out what he was trying to say. Why did he talk about safety?  Has safety got something to do with taxation? The NRC regulates safety at nuclear plants. Hopefully, Vermont does not plan to spend more money trying to regulate nuclear safety and then losing court cases.  If the legislature was trying to figure out how to tax Vermont Yankee, it seems they need a tax expert, not someone who would tell them scary things about radiation in the spent fuel pool.

Why was our committee listening to these scare stories, with no engineer to testify in rebuttal?  Anti-nuclear activists claim the spent fuel pools burned at Fukushima, but they didn’t. The new NRC commissioner, Allison MacFarlane, visited Fukushima in December and walked all around the unit 4 plant.  She could not have done this if there had been fires and criticalities in the fuel pool.

And what does any of this have to do with taxation?

I would like our legislature to be more than a bully pulpit that gives anti-nuclear activists an opportunity to get press coverage.

Background about the Alvarez Appearance

My post about his appearance: Shaffer Knows about Spent Fuel, Alvarez Talks About It

Alvarez's statement: (It's the last pdf in the list) YesVY downloads

NEI blog post about his appearance: Vermont Yankee and the Ink on the Rubber Stamp

NEI  blog post follow-up, on his appearance: The Ink on the Rubber Stamp, Redux

Shaffer Knows About Spent Fuel: Alvarez Talks About It

Robert Alvarez (at head of table, near door)
House Energy and Natural Resources Committee
Montpelier, VT  April 

The Committee

The Vermont House Energy and Natural Resources Committee is headed by Tony Klein, a fervent opponent of Vermont Yankee.  On April 21, Robert Alvarez made a statement to this committee.  Mr. Alvarez has no technical training (as far as I can tell) but he spoke at length about the amount of spent fuel stored at Vermont Yankee, how much cesium it contains, what a huge problem it is, and how it should all be in dry casks.  Also, he said that Entergy will leave Vermont holding the bag for cleaning up the site.  (In other words, he said the usual.)

Luckily, Howard Shaffer was at the meeting.  After the session, several reporters interviewed Howard.

The Interviews

Shaffer actually knows something about nuclear energy, spent fuel and so forth.  Among other things, he is a registered professional engineer in Vermont.  Well, you all know Howard Shaffer.

Here are links to the articles, and some quotes from Shaffer (and others).

 Vermont Public Radio: Expert Says Vermont Yankee Has Too Much Spent Fuel Stored on Site

When power failed at Fukushima, reactor operators could no longer pump water to keep the fuel cool. Some of the material burned, releasing radiation.

Listening to Alvarez’s testimony was Howard Schaffer, a Yankee supporter and nuclear engineer. He said that Alvarez overstates the dangers of the spent fuel pool at Vermont Yankee.

“Because most of the fuel in the pool is (cooled) down to the point where it would absorb heat in the pool, because it’s down to the point where it could be cooled in air,” he said.

(The first two sentences above are not a quote from Shaffer. They are part of the article, and I think they show the tone of Alvarez's comments.)

WPTZ: Nuclear waste expert says Vt. Yankee's growing risk

"The (Federal) NRC and the industry are more  motivated by economics than understanding the implications of the safe storage of these materials," Alvarez told lawmakers.

Some listening to his testimony think Alvarez exaggerated the problem.

"He's from an industry who makes his living saying the sky is  falling. without saying what the odds are," said nuclear engineer Howard Shaffer, of Enfield, N.H.

Rep. Mike Hebert, a Vernon Republican who sits on the committee, said Alvarez "represents an anti-nuclear group who will give the most negative position you'd expect them to do." 

AP: Vt. Lawmakers hear from nuclear waste critic
The pool ‘‘contains about nine times more cesium-137 (a radioactive isotope) than was released from the more than 600 atmospheric nuclear weapons tests around the world,’’ said Alvarez, who acknowledged under questioning from Rep. Mike Hebert, R-Vernon, that his current employer takes an anti-nuclear stance...

Howard Shaffer, an engineer with the group Nuclear Public Outreach who attended Thursday’s hearing but did not testify, said afterward that the public should not be alarmed about the safety of nuclear waste. He argued that it can be managed safely.

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Background: The Vermont State House as  Rick's Cafe Americain For Nuclear Opponents

Alvarez was at the Vermont State House because:

1. The legislature is considering taxing spent fuel and/or requiring more spent fuel to be placed in dry casks for "safety."  (I don't think I would recommend our legislature going into "safety."  I think the courts have been pretty clear about that...)
2. The committee invited Alvarez to testify about spent fuel. 

Actually, Alvarez was invited by both the Senate and House committees: he was supposed to speak at a joint session of both committees.  But the joint session never happened, and he spoke to the House committee only, in a rather small and crowded room (see picture above).

Everybody comes to Rick's

Anti-nuclear activists are often invited to speak to the House Natural Resources and Energy committee.  Next week, Arnie Gundersen will speak to them. This committee is like Rick's Cafe Americain for anti-nuclear activists.  They are all invited and they come.

In contrast, the Ethan Allen Institute sponsored Gwyneth Cravens to come to Vermont two years ago: she is the author of Power to Save the World.  However, we were unsuccessful at getting her to be invited to speak before a  legislative committee. We did arrange for Cravens to speak at a State House Round Table, which is basically a lunch-time meeting in an available committee room.   Quite a few legislators came to hear her.

You might also enjoy reading Rod Adams post:  Why does anyone trust Robert Alverez's opinions about nuclear energy?

Update: Nuclear Notes, the blog of the Nuclear Energy Institute, has a comprehensive post on the Alvarez visit: Vermont Yankee and the Ink on the Rubber Stamp.  NEI takes a national perspective, comparing the Vermont situation to similar issues in other states.  Many excellent links, also.

The Latest Law Suit: Is It a Constitutional Case in Vermont?

Bill of Attainder or Just a Regular Old Tax?

When is a tax unconstitutional? And when is it-- just a tax?

As usual in issues concerning the state of Vermont and Vermont Yankee, this question will be hammered out in court.  As a matter of fact, the question before the court right now is...which court? Federal court or state court?

It's a question of jurisdiction, but the issue is a bigger question than jurisdiction.

The question is whether a single, law-abiding business can be targeted by a state for a very special and onerous tax.  Is it legal for the state of Vermont to write a tax bill that increases taxes on one entity (Vermont Yankee) by about $7 million dollars a year, and increases no other taxes?

We will see how this case develops, but I suspect businesses all over the country are a bit frightened by this one.  If Vermont can write a special tax that applies to one  business, so can Ohio.  So can Cook County, Illinois. There will be no end to it, in my opinion.

Background: The Clean Energy Development Fund Needs Money

Once upon a time, and not so long ago, either, Vermont Yankee agreed to contribute a great deal of money to something called the Clean Energy Development Fund (CEDF).  The amount varied with the price of power on the grid, but was often several million dollars, sometimes as much as $7 million. This tax funded wind and solar development, and some efficiency projects.

In my opinion, the CEDF contribution requirements were the result of a shakedown.  "Nice little power plant you got there.  Be a shame if something happened to your ability to store fuel rods on site."  Well.  That's just my opinion.

However it happened, (by negotiation, by shakedown)  Entergy agreed to contribute to the Clean Energy Development fund, up until March 21, 2012, when Entergy's first NRC license ended.  After March 2012, a great many legal obligations changed.  Entergy was no longer obliged to sell power to Vermont utilities at a fixed rate, and Vermont utilities were no longer obliged to buy power from Vermont Yankee.  Entergy's obligation to the Clean Energy Development Fund ended.  And so forth.

If you visit the Clean Energy Development Fund website, you can see that the grant and loan programs are now closed.  No money from Entergy, no money for grants or loans. (Note: CEDF did not get all its money from Entergy.  It also received money from the ARRA stimulus funds. That money is not available for the future.)

The lack of money for the CEDF has been very irritating to the groups in Montpelier that support wind turbines, etc.  They want that Entergy money to come back, and pronto!

Of course, the same people also want Vermont Yankee to shut down, and pronto! Logical consistency is not their strong suit.

This year, the legislature passed a law adding $7 million dollars to the $5 million dollar generation tax that Entergy pays already.  The idea was that CEDF would once again be funded by Entergy, and everyone will be happy.  At least, that is what the legislators hope.

State Legal Team Issues a Warning to Legislature

In April, when the legislature was considering this tax, two state lawyers issued a warning.  Vermont Assistant Attorney General Scot Kline  and legislative lawyer Peter Griffin were quoted in an article in the Burlington Free Press:

Although two lawyers told them it would be a risky move, legislators are poised to approve a tax increase on the Vermont Yankee nuclear power plant.

“There is some legal risk associated with increasing the generating tax,” Assistant Attorney General Scot Kline told the Senate Finance Committee this week.

Kline said the tax change could be challenged in court...Kline said the Attorney General’s Office decided lawmakers should be told of the risk. Peter Griffin, a legislative lawyer, told the committee he agreed with Kline’s assessment.

The legislature passed the bill anyway, of course.  To some extent, I gotta smile at this.  It reminds me of when Entergy sued in Federal Court in the main case about shutting the plant down.  At that point, the legislature quickly passed a law saying Entergy had to pay the state costs and lawyers to defend the case.  They passed the law, but the State Attorney General had to admit that the law was on "shaky ground" and never tried to enforce it.  Plus ça change, as they say...The Vermont legislature never seems to learn.

Oh yeah.  I have an earlier post on this attempt to get money. In January:  Taxing Fuel Rods, Vermont Legislature Plans Another Law Which Will End Up in Court.

The Warning Comes Home: Entergy Sues

Clearly, Entergy had an incentive to avoid being targeted this way, and brought suit against the state.  It brought this suit in federal court, on constitutional grounds. Andrew Stein at Vermont Digger has a comprehensive article on the lawsuit, including the four constitutional issues Entergy named in its suit, and an interview with Cheryl Hanna of Vermont Law School.  A quote from the article below:

Hanna thinks the equal protection argument might be Entergy’s strongest.

“Where the Legislature runs the greatest risk is that they targeted Vermont Yankee,” she said.

To see the actual wording of the law, follow this link to the omnibus tax bill, and read the words on page 47:

(a) There is hereby assessed each year upon electric generating plants constructed in the state subsequent to July 1, 1965, and having a name plate generating capacity of 200,000 kilowatts, or more, a state tax in accordance with the following table: at the rate of $0.0025 per kWh of electrical energy produced.

There's only one such plant.  It would have been easier to just name "Vermont Yankee."

The Empire Under the Dome Fights Back

The state asked the federal judge to dismiss the Entergy lawsuit, claiming it was merely a matter of a state tax, not a federal or constitutional issue.  Susan Smallheer of the Rutland Herald reports on the Entergy counter-argument that this is a levy, not a tax.

This is clearly an on-going dispute which will be going on for quite a while.  I will continue to cover it as more information is available.

Meanwhile, let's hope that Cook County doesn't get any bright ideas on how to raise money for Chicago city government, by targeting the richest businesses in town!  I used to live in Chicago, and I wouldn't put it past the city government to do that.

Of course, now I live in the clean green state of Vermont.

The Court Decision on Spent Fuel and Vermont Yankee

The Court Decision and the Local Reaction

Dry Cask illustration from NRC

In March of this year, Vermont and other petitioners brought suit against the Nuclear Regulatory Commission (NRC).  Their suit claimed that NRC rulemaking on spent fuel storage was insufficient. On Friday, June 8 the Federal Court of Appeals in the District of Columbia ruled in favor of the petitioners.  According to the court, the NRC rules on spent fuel storage will have to be revised. You can read the court's decision here.

Some of the local reactions have been unrealistically optimistic that this ruling means Vermont Yankee is doomed. There's a spirit of: "We told you so and now Vermont Yankee won't be able to operate any more!"  A recent Vermont Digger article was titled: Federal ruling could give state officials basis for denying Entergy license to operate Vermont Yankee. Meanwhile, in a Vermont Public Radio article, Nuclear Waste Ruling Could Strengthen VT Court Case, Vermont Attorney General Sorrell said that the lack of long-term storage was an economic risk to Vermont, and the Vermont Public Service Board can look at economic issues. A direct quote from Sorrell:

"Here you've got under what was the NRC decision, 20 years of relicensing, and then the ability to store spent fuels on the Vermont Yankee site for another 60 years," he said. "So 80 years out of spent nuclear fuels being stored there, 60 of those supposedly after Vermont Yankee is no longer operating. And is that good for the state economy?"

(Note.  I find this remark completely illogical in terms of economic consequences, so don't ask me to explain it.  I quoted it, and that's all I can do.)

The Real Court Decision
The Vermont Yankee opponents are wrong about the consequences of this decision.  They are loud (as usual) but they are wrong.

In my view, there are three facets to the court decision, none of which have any immediate consequences to any operating power plant. They may have economic consequences in the future, but these consequences are unpredictable.

The background is this.  In 2010, the NRC ruled that spent fuel could be stored on site for sixty years after a plant was closed or until a permanent repository was available. Regarding this action, the court said:

Centralized fuel pool
(pool for many reactors)
Areva

• The rule-making for fuel storage on site is a major federal action, and therefore must have either an environmental impact statement or an official finding of "no environmental impact."
• In 2010, NRC extended of spent fuel storage on-site from thirty to sixty years after a plant has closed.  The court ruled that this NRC time extension was not justified nor sufficient.  The NRC must address the possibility that no permanent repository will ever be available, and do an environmental impact assessment of that possibility.
• The NRC can do the type of rule-making it usually does for general issues, and does not have to address the storage at each plant on a case-by-case basis.

All these factors are as applicable for any other plant as they are for Vermont Yankee. None of them challenge the NRC's role in assessing radiological risk from nuclear plants.  In other words, nothing in this ruling allows the state to take any kind of pre-emptive action about radiological safety.

The NRC also has the right to appeal this decision to the Supreme Court.

The NRC has work to do. 
No matter how many commentators say that the Vermont Public Service Board  should be influenced by this decision, the decision is completely about NRC rule-making. It defers to the NRC for further rule-making.  This decision does not give the state of Vermont any right  to pre-empt federal regulation of radiological safety. It does not require that Vermont Yankee fuel storage be assessed as a separate case.

(Another note.  I'm not a lawyer. Still, I thought this decision was pretty clear, so I feel reasonably confident in what I wrote.)

Spent fuel shipment canister
Areva

Pressuring Congress?

Maybe this ruling is about pressuring Congress for a spent fuel storage facility. You might look at Will Davis Atomic Power Review post on the ruling.  He starts by repeating the introductory statement (from the ruling)

This is another in the growing line of cases involving the federal government’s failure to establish a permanent repository for civilian nuclear waste.

In other words, you can look at the ruling as a set-back for the NRC.  Or you can look at the ruling as a boost, provided by the courts, for  opening a spent-fuel repository.

More Resources:

Two excellent articles on the subject are Federal Court Throws Cold Water on Nuclear Waste Ruling at EnergyBiz, and Court Forces a Rethinking of Nuclear Fuel Storage at the New York Times.  My local paper, the Valley News, has a clearly-written op-ed with the history of the NRC's rulings on spent fuel storage: Confidence Game: Court Rightly Challenges the NRC.

105th Carnival of Nuclear Energy at ANS Nuclear Cafe: The SFP 4 Debunking Issue

The 105th Carnival of Nuclear Bloggers at ANS Nuclear Cafe could be called: the Spent Fuel Pool Debunking Issue.

End of World is Predicted

People such as Arnie Gundersen were disappointed that the world has not ended due to the melt-downs of Fukushima Daiichi.  Their predictions were wrong, but they will never admit that. Instead, they have made a set of new predictions: the world will end because of Spent Fuel Pool number 4 at Fukushima Daiichi.  As a matter of fact, Gundersen predicts that the spent fuel pool could "certainly destroy Japan as a functioning country" and he recommended that we all "move south of the equator if that ever happened."

When your doomsday predictions don't come true, make more!  Make them worse!

The Bloggers Strike Back 

Because of these predictions, I urge everyone to read the blogs in the 105th Carnival.  Groups of bloggers with nuclear expertise answer these doomsday assertions, with facts, videos, pictures, calculations.  We worked together and in tandem, and Dan put it all together beautifully at the Carnival.

The most comprehensive post was by William Davis.  He usually blogs at Atomic Power Review, but he wrote Spent Fuel at Fukushima Daiichi safer than asserted for ANS Nuclear Cafe.  That was actually a collaborative effort between Davis and a group of bloggers.  It was followed by more blogs on the subject: NEI Nuclear Notes on Setting  the Record Straight, Rod Adams at Atomic Insights on Debunking the Fukushima Spent Fuel Fable, Steve Skutnik at Neutron Economy on TEPCO's Triage at Unit 4.  This set of posts is honest and informative about the spent fuel pools: experts, expert opinions, reasoned arguments.

Most of these posts attracted huge comment streams.  Go to the Carnival, and read these posts. Read the comments, too! (Iillustration at right of Spent Fuel Support structures from TEPCO).

More than Fukushima


In the book and movie On The Beach, everyone moves to the Southern Hemisphere.  They die anyway of radiation poisoning.  In the first part of the Carnival, the bloggers debunk statements of people who spend too much time watching that movie.

However, the Fukushima fuel pool is not the only item of interest in the nuclear world.   The Carnival includes posts by Brian Wang at Next Big Future on reactor starts and restarts for 2012, and on uranium production worldwide.  The Carnival includes Howard Shaffer's guest post on attending an NRC meeting for Vermont Yankee, and Robert Hayes at the S and T blog about using radiation for food safety.

Come to the Carnival! Bloggers disprove and debunk the fuel pool scare stories. We don't have to move to Australia!  This blogger work is important.  Read it!

Dry Casks, the PSB, the Judge and My Useless Soundbite

The Public Service Board Is Confused

The Vermont Public Service Board (PSB) may need to issue a Certificate of Public Good in order for Vermont Yankee to continue to operate. Meanwhile, in a January 19 ruling about Vermont Yankee, Judge Murtha enjoined "the Legislature" from closing down Vermont Yankee by regulating dry cask storage of spent fuel. You can read the entire ruling here: the last few pages contain the relevant injunction against shutting down the plant by regulating dry cask storage.

The Judge showed that "the Legislature" was attempting to regulate nuclear safety issues. These are regulated solely by the Nuclear Regulatory Commission.

On March 9, Howard and I attended a PSB hearing. The Public Service Board couldn't figure out how it was going to control dry cask storage if the legislature didn't give it authority to do so. Apparently, the PSB looked at the Judge's ruling and said "Who, me? Surely the Judge didn't mean that we can't regulate dry casks. He's talking about the Legislature, not us."

What Part of No Don't You Understand?

At that point, Entergy asked the Judge for a ruling that would clarify the situation. On Monday, the judge ruled, and you can link to it here. As Judge Murtha wrote:

a denial of authorization to store fuel, on the basis of statutory provisions that this Court has held were enacted with a preempted purpose, would force Vermont Yankee to shut down, .....Therefore, Defendants are enjoined, pending the appeal of the Court’s final judgment and Merits Decision to the Second Circuit, from addressing the storage of spent fuel ... from bringing an enforcement action, or taking other action... to compel Vermont Yankee to shut down because the “cumulative total amount of spent fuel stored at Vermont Yankee” exceeds “the amount derived from the operation of the facility up to, but not beyond, March 21, 2012.” (emphasis added by me)

My translation: legislating spent fuel storage is a "pre-empted purpose" and you can't shut the plant down on that basis.

In other words: PSB, what part of "no" didn't you understand?

My Soundbite and How It Fell Flat

I'm a kind of geeky person and I tend to give long-winded explanations. But when I was in the hearing room on March 9, I thought of a soundbite. I even told it to a couple of reporters. They didn't quote it but still, I liked it. The hearing was Friday the 9th and the ruling was Monday the 19th, so my soundbite predicted what the ruling would be.

I said:

"Whatever they think about it, PSB has no authority to regulate dry casks. No judge will let them regulate it. Radiological safety issues are pre-empted to the federal level. A spent fuel cask is just a concrete cylinder with some ceramic pellets inside. Without radiological concerns, there is nothing to regulate."

Okay, okay, it was long for a soundbite, and it didn't deserve to be quoted. Still, I kind of liked it, and I tried to get it out there in the press.

A dry cask is a concrete cylinder with some ceramic pellets inside. One gets tired of the "tons of waste on the banks of the Connecticut" descriptions. In my opinion, my own description is just as close to the truth. Maybe closer.

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Further reading includes

Shumlin and the Public Service Board and A Crabby Public Service Board, both on this blog.

Back to the the Vermont Public Service Board: Square One or Before by Howard Shaffer at ANS Nuclear Cafe

State Can't Shut Vermont Yankee Over Waste Issue. Dave Gram, Burlington Free Press.

Update: Not sure how I missed this, but the PSB also realized that it couldn't rule on spent fuel, but only because the Judge said so. A rather complex statement from the PSB (deliberate obfuscation or just fuzzy thinking?) is near the bottom of this excellent Vermont Digger article by Randolph Holhut of The Commons and Alan Panebaker of Vermont Digger. Murtha Gives Entergy Okay to continue operating Vermont Yankee. Well, my soundbite on those casks was still first and earliest....